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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
G.D. Kamat, J.
Jitendra R. Deshprabhu and others.... Petitioners.
Versus
Executive Magistrate and another.... Respondents.
Criminal Miscellaneous Application No. 119 of 90, decided on 4-10-1990.
Advocates appeared :
S.K. Kakodkar, Senior Advocate with S.R. Riverkar, for the petitioners.
G.U. Bhobe, P.P., for the State.
Held, Section 107 of the Criminal Procedure Code under the heading "Security For Keeping The Peace In Other Cases", says that when an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of the opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond with or without sureties, for keeping the peace for such period, no exceeding one year. From this section it is therefore clear that more receipt of the information by the Magistrate that any person is likely to commit a breach of the peace or disturb public tranquility or do any wrongful act that may probably occasion breach of peace, is not sufficient, but the Executive Magistrate must then reach his opinion that there is sufficient ground for his proceeding in the matter.
Section 1l6(3)-Magistrate ordering petitioner to enter into personal bond and to furnish securities in amount of Rs. 10,000 by way of interim measure to maintain peace until conclusion of enquiry-Validity-Enquiry as contemplated under Section 116(3) not commenced-Held-Impugned order of Magistrate invalid.
On a plaint reading of Sub-section (3) of Section 116, it is therefore clear that whenever the Executive Magistrate requires a person proceeded against to execute a bond for keeping peace or maintaining good behaviour until the conclusion of the enquiry it can only be after the commencement and before the completion of the inquiry under sub-section (1) thereof.
On facts apart from summons not being served, the petitioners are yet to appear before the Executive Magistrate. Therefore, at any rate there is no scope for the State to contend that any inquiry as contemplated under sub-section (3) of Section 116 Criminal Procedure Code has commenced. It is therefore, obvious that there is no question of any interim bond being taken from the petitioners unless the proceedings had commenced.
2. By the Order dated 1st August, 1990 issued under section 111 of the Criminal Procedure Code by the Executive Magistrate, the petitioners are directed to attend the Court of the Executive Magistrate on the 9th day of August, 1990, to show cause as to why they should not be required to enter into a bond of Rs.10,000/- each and also give sureties each by a bond of like amount under section 107 of the Criminal Procedure Code to maintain peace for a term of one year. The same order further directs the petitioner in the meantime to enter into a personal bond and to furnish sureties for the same amount as interim measure that they shall maintain peace. It is needless to say that this order is made in case No. JM/MAG/39/90 in proceedings drawn up under chapter VIII of the Criminal Procedure Code.
3. Though the order has been made against four persons, only three of them have come in the present petition challenging the same and it is the case of the petitioners that the first petitioner comes from a respectable and well-known family of Goa; that the petitioners No. 2 and 3 are employees of the first petitioner; that the first petitioner has been and continues to be an active worker of the Congress-I party, but ever since the Ministry of the Congress-I Government was toppled, from March, 1990, the petitioner No. 1 is harassed in many ways by the members/workers of the Maharashtrawadi Gomantak Party which party has come in power by aligning itself with and forming the Progressive Democratic Front Ministry; that many of the workers/sympathisers of the Maharashtrawadi Gomantak Party reside in the first petitioner' property at Devsum in Pernem Taluka and they are seeking to prevent the first petitioner's access to his own properties, for its improvement. It has been next averred that the first petitioner was recently perforced to file a Writ Petition (No. 119/90) against the Mamlatdar of Pernem, Taluka as also P.S.I. of Pernem Police Station for a mandamus restraining them from aiding the Sarpanch of the village Mandrem in the illegal construction of a road in the petitioner's property known as Kharbawada, that on 15th July, 1990, when petitioners visited his property at Devsum for plucking coconut from his garden property though a person by name Nakul Mhamal was caught by them stealing coconuts from the property and though not a resident of the said village was being supported by one Raju Talaunekar who bears a long-standing grudge against the first petitioner. But even before the first petitioner could file the first Information Report it was discovered by the petitioners that the troubleshooters of the first petitioner had with the connivance of P.S.I. Lobo already registered a complaint against them as No. 49/90. It is against this background it is averred that the petitioners were served with the order of the Executive Magistrate of Pernem Taluka dated 1st August, 1990.
4. The impugned Order under section 111 Criminal Procedure Code dated 1st August, 1990 and the proceedings taken thereunder are challenged that the same are without jurisdiction firstly that under no circumstances the petitioners can be required to execute bonds pending the inquiry in Case No. JM/MAG/39/90 as an interim measure to maintain peace inasmuch as the petitioners are yet to appear before the Executive Magistrate and at any rate, the proceedings have not commenced before the Executive Magistrate and therefore, there is no question of the Executive Magistrate requiring the petitioners to enter into any bond by way of any interim measure. The order and the proceedings are equally challenged on the other jurisdictional grounds that at any rate the infor
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